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110 Feedback June2015 - GOOD
Law of Tort (LAW209)
University of Liverpool
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FEEDBACK ON EXAM IN PUBLIC LAW II (LAW110) SUMMER 2015
General
The examiners were pleased that, mostly, students were providing authorities to support the points they were making in answers. It should be remembered that when dealing with topics which relate more to policy, as in Q, support for your points may come from academic literature or government publications and they should be cited.
To achieve higher marks answers must conduct an analysis of the issues raised by the question. Simply identifying and describing relevant law and policy is the start of, but not a complete answer. In an essay question, such as Q this can take the form of comparing the theory and the principle with actual practice and in a problem question such as Q it means you have to apply the law to the facts in the question. These points will be elaborated on below.
Attendance at tutorials in Public Law II was not good and this is reflected in the marks as weak answers did not display the level of knowledge and understanding which can be acquired by preparing for and participating in tutorials. On the other hand there were answers which really showed that students had thought about the material which they were studying and demonstrated a critical awareness and understanding.
Students who will be taking a resit exam in August should look at the marking descriptors to remind themselves of the things the examiners are looking for when marking and level 1 is the appropriate level for a Year 1 module. Go to the Assessment page on the Law School Student Intranet
liv.ac/intranet/law-and-social-justice/law/assessment/
There is useful information on this page about assessment
The direct link to the guidance on Marking Criteria
liv.ac/intranet/media/livacuk/law/studentintranet/marking,criteria,level,1
The Questions
- Judicial review should be concerned only with the legality, not the substance, of decision- making. Too often, the courts seek to usurp powers which rightly belong to the executive.’
Critically discuss this statement.
This question was the worst answered by students who did not understand the issues it raised. One of the theories underpinning judicial review is that it deals only with legality not substance or merits but the question is challenging this orthodox position, proposing that this does not happen in practice. Therefore an answer must consider the grounds of judicial review and consider the evidence which would and would not support that proposition. A good start would be to set out this traditional understanding (and the authority for this is?).
The grounds of judicial review have been put in three classes: Illegality, Irrationality/Unreasonableness and Procedural Impropriety (and the authority for this is?). You take those classes in turn, considering the grounds and cases which do and any which might not support the orthodoxy. The lectures and the prescribed reading will have examples of cases which support and some which it is suggested do not support the orthodox position.
You will then have to assess if the proposition is justified and if it is to what extent.
- ‘The ultra vires theory provides not only a convincing but an essential constitutional justification for the exercise of judicial review powers.’ How far do you agree with this statement?
This question is similar to Q in that it is asking whether or not an orthodox position is reflected in practice and it also produced a significant number of answers which failed to address this, although to a lesser extent in than in answers to Q. On the other hand there were a significant number of very good answers which displayed knowledge and understanding of this debate. In the lectures and the first tutorial, this debate was presented. Weak answers did not mention that there was a debate conducted through articles in academic journals in which the ultra vires view had been criticised, highlighting the points made in the critiques or any of the contributors to the debate. Good answers outlined the traditional view of ultra vires with authorities, cases and academics, then presented the critique by named contributors and the authorities they cited to support their points. The next stage was that the traditional ultra vires theory was revised seeking to show a better balance between Parliamentary intention and common law and arguing that Parliamentary intention must justify judicial review. There was rejoinder to this revision by another contributor. The good answers could present tis material and demonstrate that they understood the arguments and then give reason as to the extent to which they agreed with the statement in the question.
3 .The Merseypool Pub Council has a statutory power to issue and revoke licenses to operate bars and clubs.
Argy applies to the Council for a licence to open a pub close to Sefton Park. He is quietly confident about his application, since the Council’s chairman, Mayor Pickles, recently appeared on TV promising to expand the range of entertainment venues in Merseypool. Archie is dismayed to find out that his application has been rejected on the grounds that the Council will never grant new licences in respect of residential areas.
Benjie has operated a city centre nightclub for 10 years. When local media publish allegations of widespread drug dealing on Merseypool’s club scene, the Council immediately revokes Benjie’s licence and refuses to communicate with him any further about its decision. Benjie discovers that Mayor Pickles is a family friend of Margie, the owner of a rival nightclub. A furious Benjie continues to open his nightclub, in defiance of the Council’s decision, leading to his arrest and imminent criminal prosecution.
important ideas and principles underlying his recommendations and then relating that to the proposition that the may be a problem if tribunal users lack assistance in understanding the law. While credit can be given for knowledge of the problems and barriers user face which are described in the literature (and you cite the authors), the question highlights lack of legal knowledge. A strong answer will consider the nature of tribunals, and the tasks they are given as well as their method of carrying them out, and consider what a lack of legal knowledge means. This will include any problems for the user and the degree to which the tribunal with its claimed advantages over courts can minimise those problems. Doing this is therefore answering what the questions asks by identifying from your knowledge of the issue that which is relevant to users’ legal knowledge.
- The Alphaville City Council hires out the City Hall for meetings. Betty books the City Hall for three nights for a series of rallies as part of her campaign to protect a meadow and its rare plants from development proposed by Clark one of the councillors in the party which controls the council. After the first two meetings Betty is informed that her booking has been cancelled as she and some of her supporters are alleged to be making untrue claims about Clark and urging people to demonstrate at Clark’s home and offices.
Advise Betty if she could challenge the council’s action under the Human Rights Act 1998. Would your answer differ if it was during the election to the council and Betty was a candidate?
This was the least attempted question which is not surprising given the very poor attendance at the final round of tutorials. Again there were some weak answers but rather more good and some very good answers. The weak answers do not explain the scheme of the Human Rights Act 1998, what it does, what it requires, who may bring actions in respect of what against whom? Generally there was good knowledge of the conditions and tests which permit lawful restriction of freedom of expression outlined in Art10(2) and interpreted and applied in Strasbourg and domestic case law. The application of that law to the facts was not as strong. Very few considered the implication of that fact that Betty was deprived of one meeting out of the three she had booked. There was consideration of the urging of people to demonstrate but is there any significance in the different locations? Most answers considered the alternative fact that Betty was a candidate in a council election and t was thought that elections in a democratic society require a free exchange of views, making it harder to justify restrictions on freedom of expression and assembly.
110 Feedback June2015 - GOOD
Module: Law of Tort (LAW209)
University: University of Liverpool
